ABSTRACT
Prevention of public dissemination of information and harmful publicity is considered as one of the key reasons for parties in international disputes to choose arbitration as a mode of dispute resolution over other forms of resolution. The general notion that it is confidentiality that attracts parties to arbitration can however be challenged in case of international commercial arbitration (ICA) as confidentiality has not been statutorily mandated in several jurisdictions worldwide.
The UNCITRAL model law forming the basic framework of many domestic jurisdictions also does not expressly provide for arbitration proceedings to maintain confidentiality. While countries such as Sweden, United Kingdom, USA, etc have remained silent on expressly providing a provision of confidentiality, India and some arbitral institutions such as LCIA and SIAC have prescribed that arbitral proceedings shall remain confidential.
Moreover, privacy is often interchangeably used with confidentiality although the two terms carry an entirely mean differently in the arbitration set-up as privacy would mean that no third party other than the arbitrator and the parties in dispute can attend the arbitration proceedings whereas confidentiality would mean non-disclosure of information to the third party without consent. This paper shall focus on highlighting: the reality of the presumption of confidentiality in the international commercial arbitration arrangement by exploring the lack of uniformity in the international principle of confidentiality in the laws of arbitration and the extent and scope of protection of confidentiality if any, to be maintained by the parties in the international context.
Naik, Neela V, Confidentiality in International Commercial Arbitration: A Reality or Presumption (April 2023).
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